In the course of rejecting an antitrust complaint in Bell Atlantic Corp. v. Twombly, No. 05-1126 (U.S. May 21, 2007), the Supreme Court today repudiated the "no set of facts" formula of Conley v. Gibson, 355 U.S. 41, 47 (1957), for judging motions to dismiss for failure to state a claim under Rule 12(b)(6):

[A]fter puzzling the profession for 50 years, this famous observation has earned its retirement.  The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard:  once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. 

The Court held the complaint inadequate because it didn’t specify factual circumstances that made an antitrust conspiracy "plausible" rather than merely "conceivable".

Blawgletter suspects that the repudiation of Conley v. Gibson will exert more gravitational force than the conclusion that competitors’ parallel conduct, without more, doth not an unlawful agreement make.  Will Twombly open the way to searching review of pleadings on motions to dismiss?

We will refrain from predictions.  Conley lasted half a century.  Perhaps we’ll have another 50 years to sort out the implications of Twombly.

Barry Barnett

Feedicon14x14_2 Adieu, adieu, to you and you and you.